THE MONARCHY AND EARLY REPUBLIC: THE SOURCES OF LAW
The fabric of the entire legal system in the earliest period of Roman history, encompassing the city’s formation to the fifth century BC, was mainly composed of customary norms designated mores maiorum (the ways of our ancestors). Some norms were regarded as components of the human sphere, while others derived their binding force from their supposed divine origin. However, the early Romans did not establish a clear distinction between secular law (ius) and divine law (fas).
Priestly officials were entrusted to enforce the religious duties as prescribed by the norms of fas. These officials independently discharged their task by devising and administering coercive practices. Essentially, the Roman priests were state officials responsible for the religious branch of public administration.1 The most important religious body was the college of the pontifices. According to Roman tradition, King Numa Pompilius established this college in the late eighth century BC.2 As guardians and interpreters of the divine law, the pontiffs exercised general supervision over a wide range of matters associated with public religion, set the rules governing the conduct of religious ceremonies and rituals (ius sacrum),3 and punished those who committed offences against the norms of fas. Behaviour that violated the rules of divine law was referred to as nefas, and regarded as disruptive to the harmonious relationship between the community and its gods. The Romans believed that such behaviour could invoke the wrath of the gods and entail misfortune for the entire community. The violation of a rule pertaining to fas rendered the offender impious and the ensuing punishment was expiatory in character: its purpose was to heal the condition of collective impurity and thus to restore the state of harmony (amicitia) between the community and the gods.
Conduct that caused no harm to others was regarded as consonant with ius, the body of man-made norms governing human relations. Any behaviour that violated these norms was termed iniuria. Originally, the term ius (plural, iura) denoted that which is due in human relations – the rightful power of a community member to act in a certain manner vis-à-vis his fellow citizens. It referred to a course of conduct that the community would take for granted and, in that sense, endorse. Thus, a person who appropriated an object, entered upon land, ejected or imprisoned another individual may in so doing be exercising ius. The community had a general awareness of the circumstances when such acts would be construed as iura and these were established by custom. The existence of a ius was determined by securing, probably through ordeal, the sanction of the gods. At this stage, the exercise of ius had no connection with state organization and thus ius was defined as any instance of approved self-help. After the consolidation of the early Roman state and the establishment of a formal system of justice, ius denoted the rules or norms capable of enforcement with the consent of those responsible for safeguarding and maintaining the norms governing community life. Thus, the holders of imperium had the essential functions of pronouncing the ius and assisting those with rights to obtain their entitlements through formal channels. The earliest form of legal procedure was the act whereby a person who possessed or claimed a ius against another requested a jurisdictional magistrate to both confirm his ius and enable its exercise by effectively suppressing an opponent’s resistance. Roman law developed primarily as a private law that was devised as a system of rights or claims bolstered by causes of action and specific procedural remedies. When Roman legal thinking evolved to perceive the various protected powers as a system, the term ius resembled our modern meaning of the word ‘law’ in a broad sense: the entire system of norms by which the rights and concomitant powers of community members are defined, protected and enforced.
Although from an early period the Romans distinguished between the human and divine orders,4 the two spheres of ius and fas occasionally overlapped. The link between ius and fas is evident from the fact that certain types of behaviour involving a gross breach of faith5 originally related to ius but were deemed particularly reprehensible as they were also interpreted to violate fas. In the archaic period, the notions of ius and fas were also linked through the king who, as head of the state, dealt with matters pertaining to both human and divine law. Moreover, until as late as the second century BC the interpretation of the norms of ius was governed by the college of the pontiffs, who acted as custodians of both the divine and the secular law. They alone were acquainted with the technical forms employed in creating the typical transactions of private law, and were entitled to present advice and authoritative opinions on questions of law. As members of the Roman ruling class, the pontiffs represented a unique combination of socio-economic power with religious and political authority. This blend of economic and political power with religious authority provided a sufficient legitimation of their judicial authority.
As Roman legal thinking developed, ius or law in a broad sense was construed to embody a strong normative element, reflecting the relationship between law and justice (iustitia).6 In this broad normative sense ius is not the same as morality nor as positive law; rather, it is right law, or positive law as it ought to exist in light of what morality and justice ordain.7 Ius, as defined above, was distinguished from lex (plural leges). The latter term signified a law created by a competent legislative organ of the state in conformance with a prescribed procedure. During the Republic the term lex was used to denote a statute enacted by a popular assembly and created in a form directed to all citizens. However, in fact and often in form, the statute imparted general directions to jurisdictional magistrates.8 A lex, which by definition pertained to a specific type of legal relationship, drew upon ius but was not identified with it. The normative principles of ius that determined the question of lawfulness or unlawfulness were not reducible to the body of formally enacted laws. These principles were regarded as pre-existing and transcending the enacted law, which merely prescribed the method for implementing ius under certain circumstances. Unlawfulness was defined primarily in relation to ius, for an unlawful act was deemed to encroach upon the principles of ius that informed the particular legislative enactment encompassing the act. From this viewpoint, the word iniuria signified any infringement of the law comprised of an act performed ‘contra ius’. Furthermore, the application of a lex was typically strict, as an act or dispute was tackled according to the letter of the law without reference to the circumstances of the individual case. On the other hand, the norms of ius were construed as flexible and thus adaptable to the circumstances of each particular case. Whereas the implementation of a lex was based on formal criteria, the implementation of ius was anchored in its intrinsic rightness.9
A characteristic feature of early Roman law was its extreme formalism, indeed ritualism, manifesting the religious origin and character of many legal rules and institutions. In this context, formalism denotes not only the need for compliance with the forms or rules of procedure characteristic of any legal system, it also emphasizes form in every part of the legal system; the casting of all legal acts into an unchangeable form where successful completion depends on strict adherence to a set ritual engaging certain words or gestures. Archaic Roman law is perceived as formalistic because legal acts, that is, acts that effected or intended to effect changes in the legal relations of individuals, were accomplished with a complicated array of forms. Further, an individual electing to assert a claim at law against another had to mould the claim within the scope of a particular limited cause of action expressed by means of a strictly prescribed formula – the slightest mistake would entail loss of his case. Interpretation might stretch the meaning of certain words, but the words themselves were immutable: only claims adapted in concordance with the words were possible. This form of procedure offered no opportunity for modifying the issue based on the objections issued by the defendant, who could only admit or deny the plaintiff’s claim. This system displays an important feature of Roman legal thinking: its normativity. For the Romans, the law consisted of rules similar in manner to their religion. The rules of law, consisting of fact–decision relationships, could not be argued for – similarly, a minister of religion was unable to present a rational justification for his prophesies. In each case the link between the facts (the judicial proof, the flying bird) and the decision (an interpretation of the law or a statement concerning divine law – fas and nefas) remained an inexplicable norm. This perspective emphasizes the irrational aspect of archaic decision-making.
The traditional law of archaic Rome was termed ius Quiritium because Roman citizens were addressed by the name Quirites in the comitia. In later eras this law was referred to as ius civile or civil law: the legal order of the Roman citizenry (cives Romani). In a broader sense, the term ius civile denoted the law peculiar to a particular state or political community.10 Like most archaic peoples, the Romans observed the personality of the laws principle, whereby each person lived by the law of their community. Thus, the Roman ius civile was the law that applied exclusively to Roman citizens, and the term ius civitatis denoted the legal rights to which only Roman citizens were entitled.11 There were two kinds of rights: public rights (publica iura) and private rights (privata iura). The principal public rights embraced membership and voting in the popular assemblies (ius suffragii), access to political office (ius honorum), the right to serve in the army (ius militiae) and the right to appeal from a magistrate to the assembly against sentences involving death or the loss of personal freedom or citizenship (ius provocationis). The most important private rights encompassed the right to contract a regular Roman marriage (ius connubii), the right to acquire and transfer property according to law (ius commercii), the right to create a will or inherit under a Roman will (ius testamenti factio) and the right to legal recognition in the courts of law. An individual entitled to all the rights of the citizenship was designated civis optimo iure.12 From an early period, communities affiliated with Rome were granted limited rights under the Roman ius civile. The members of these communities occupied an intermediate position between Roman citizens and foreigners.13 The term peregrinus signified any free person who was not a citizen of Rome.14 Initially, foreigners living in Rome had no rights under Roman law.
The Roman ius civile emanated from several sources: custom, legislation, administration of justice and constructive interpretation of existing rules by the jurists.
Customary law and the laws of the kings
The formation of the Roman city-state probably derived from a gradual process whereby several neighbouring clans (gentes) coalesced to form a larger political entity under a common head, the king (rex). From a legal standpoint, the establishment of the civitas Romana may be attributed to an arrangement resembling a treaty (foedus) between the various patres gentium. Naturally, the framework of the new political entity was akin to that of the pre-existing gentes. The emergence of the civitas invoked the necessity for a system of law to govern the entire community. However, so long as the gentile organization remained more or less intact, this legal system would refrain from regulating relations between members of the same clan as this was the function of that clan’s law. The legal system would confine itself to directing relations between members of different clans as well as the structure, functions and activities of the organs within the civitas